Opinion
July 26, 2001.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent which found petitioner guilty of violating a prison disciplinary rule.
Kouriockein Vann, Brocton, petitioner in person.
Eliot Spitzer, Attorney-General (Peter H. Schiff of counsel), Albany, for respondent.
Before: Cardona, P.J., Mercure, Peters, Mugglin and Rose, JJ.
MEMORANDUM AND JUDGMENT
The detailed misbehavior report, together with the testimony of its author and a second correction officer who witnessed the incident, provides substantial evidence to support the determination finding petitioner guilty of refusing a direct order (see, Matter of Zarvela v. Goord, 270 A.D.2d 532, lv denied 95 N.Y.2d 758). Inasmuch as the record contains no evidence that the correction officer who authored the report was aware of an action that petitioner claimed to have recently commenced against him and a number of other officers, an issue that petitioner could have explored when the author testified, we see no error in the Hearing Officer's refusal to accept the documentary evidence of that action offered by petitioner as the basis for his retaliation claim. Petitioner was not entitled to employee assistance in the tier II hearing (see, Matter of Booker v. Rivera, 276 A.D.2d 985) and we reject his claim that the matter was so complex that the Hearing Officer erred in failing to exercise the discretionary authority to provide assistance (see, 7 NYCRR 251-4.1 [b]), particularly in the absence of any evidence of prejudice to petitioner from the lack of assistance (see, Matter of Cliff v. De Celle, 260 A.D.2d 812, lv denied 93 N.Y.2d 814). The record neither supports petitioner's remaining claim of Hearing Officer bias nor demonstrates that the outcome of the hearing flowed from the alleged bias rather than from the substantial evidence of petitioner's guilt (see,Matter of Vicioso v. Goord, 266 A.D.2d 655).
Cardona, P.J., Mercure, Peters, Mugglin and Rose, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.